Director of Public Prosecutions v Clough (a pseudonym)

[2022] VCC 1807

IN THE COUNTY COURT OF VICTORIA

Revised

Not  Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY CLOUGH (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	17, 20 October 2022
DATE OF SENTENCE:	21 October 2022
CASE MAY BE CITED AS:	DPP v Clough (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1807

REASONS FOR SENTENCE

-  - -

Subject: Common law - sentence

Catchwords: Pleaded guilty – 1 charge of rape 27 years ago – sentence indication accepted -  offence occurred after marriage ended – complaint made 19 years later when being cross-examined  re another complainant – serving time for other matters  - 17 months dead time  - in prison for 5 and a half years – unable  to benefit from parole - wholly suspended  term of imprisonment warranted due to unique and exceptional circumstances – recurring cancer – aged 62  - physical and verbal abuse during childhood -  heavy alcohol  and drug abuse .

Sentence:  3 year wholly suspended prison sentence.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Perry	OPP
For the Accused	Mr A. Pyne	Greg Thomas & Associates

HER HONOUR: 

1Rodney Clough[1], you have pleaded guilty to one charge of rape which occurred in May 1995, this occurred some 27 years ago.

[1] A pseudonym.

2On 17 October 2022 I heard an application made by Mr Pyne of counsel on your behalf for a sentence indication under s207 of the Criminal Procedure Act 2009. I determined that I would be sentencing you to a wholly suspended term of imprisonment and adjourned the further hearing for your arraignment, plea and sentencing.

3Today, you have pleaded guilty to the charge of rape and the case has proceeded as a plea in mitigation in the usual way.

4I shall set out the background to the offending and the circumstances in mitigation.

5The complainant was your then partner, Melanie Moore[2], whom you married in 1996.  The marriage ended six months later.  At the time of the offending you were aged 35 and Ms Moore was 24.  You were both in the bedroom of the house where you lived at the time in Bairnsdale, when you closed and locked the bedroom door and demanded that the complainant have sex with you.

[2] A pseudonym.

6She said she did not want to.  You pushed her onto her back on the bed, you lay flat on top of her, pinning her arms above her head with your hands.  With one hand you removed the bottom half of her clothing.  She was crying and telling you she did not want to do this.  You inserted your penis into her vagina, despite her telling you she did not want you to.

7You suddenly stopped and while sitting on the bed made an insulting remark about the size of her legs.  You then left the room.  The complainant later said that during the incident some of her children were crying and calling out for her from the other side of the locked bedroom door.

8The complainant did not make a report to police or to anyone at the time.  In 2019 Mr Pearson of counsel, who was then acting for you, filed an application for a permanent stay of proceedings dated 20 May 2019.  In support of the application, Mr Pearson set out a history of the circumstances in which the matter came before the courts.  The following account is taken from that document.

9After the marriage ended you continued to have an on/off relationship with the complainant, while also in a relationship with another woman, Lilly Spence[3].  Ms Spence was the complainant alleging sexual and violent offending against her in 1998, by you, culminating in trials and ultimately an appeal.

[3] A pseudonym.

10As a consequence of those court proceedings, Ms Moore was contacted by police in May 2013, emanating from the complaint made by Ms Spence.  Ms Moore made a statement which contained allegations of physical and sexual violence by you against her, committed in Broome in Western Australia, but made no reference to the rape at Bairnsdale.

11In May 2014 she was cross-examined at a committal hearing as part of the proceedings involving Ms Spence.  During the re-examination Ms Moore provided an account of the rape to which you have now pleaded guilty.  She then provided a further statement to police.  This explains the delay of 19 years between the rape and the complainant's first report to police.

12You were arrested and interviewed in Darwin on 9 October 2014.  You were extradited to Victoria on or about 18 April 2018, while still undergoing sentence that had been imposed in the Northern Territory on 10 November 2015, in relation to trafficking cannabis.  The head sentence for that sentence ended on 12 July 2019.  You were not able to apply for parole because of your extradition and the other charges you were facing in Victoria, including the rape charge.

13The trial referred to earlier in which Ms Spence was the complainant was heard by His Honour Judge Smith, who sentenced you in August 2019. 

14The appeal against conviction which followed resulted in your release on bail on 4 June 2021.  You had been serving the sentence for 23 months, for six months of which you served sentences for two charges of assault, convictions which were not disturbed on appeal. This results in 17 months of dead time.  This is in the added context of having been in prison continuously from 10 November 2015 until 4 June 2021.

15This background is crucial to explaining three significant aspects of mitigation in relation to your plea.  The time served for other matters, that is dead time, totality, and delay.  The delay which has occurred is partly bound up in the first two matters and I shall come to those shortly.

16Mr Pyne, who appeared on your behalf at the sentence indication hearing and on the plea today, has set out succinctly the seven areas upon which both matters were based, that is dead time and totality.  He submitted that a wholly suspended term of imprisonment was warranted in the unique circumstances of this case. 

17Mr Perry for the prosecution, made effectively the same submission in stating that the prosecution had no opposition to that course.

18In determining that a suspended sentence is appropriate, I have taken into account the seven matters which Mr Pyne identified as follows:

19The so-called dead time that you have served was in Victoria between 12 July 2019 and 4 June 2021, as I said earlier, a period of 693 days which was not attributable to any conviction.  It commenced at the expiration of the Darwin matters and occurred during the pandemic, so it was custodial time spent under the difficulties imposed by the restrictions which had to be endured by prisoners.

20This leads directly to the question of totality as a mitigating factor.  The sentence you have served in Darwin and completed after extradition to Victoria, when added to the 693 days in custody after that sentence expired, has resulted in you spending about five and a half years in prison.  You were unable to benefit from parole and likely concurrency, and so the totality argument is a powerful one, as Mr Pyne submitted.

21As I said at the outset, the offending occurred in 1995 and so the delay since then is very significant.  Even after you were interviewed in 2014 there was a four year delay before you were charged in 2018.  It is now four and a half years since then.  That delay is to be taken into account on the basis of fairness, in that you have had the matter hanging over your head for a long time and have been prevented from moving on in your life.

22You have been living in crisis accommodation in Melbourne provided by the Salvation Army as you have been unable to return to what was your home in the Northern Territory.  The people who have been assisting you at the home in West Melbourne have written letters describing your motivation to improve your circumstances and the resilience you have demonstrated against considerable hardship.  You have taken part in a number of therapeutic programs and have engaged well.  You are described as a role model for other residents, and they have assisted you with your needs.

23That brings me to another important mitigating factor, your state of health.  You have been struggling with limited mobility for some years following a spinal injury, but you have progressed from a wheelchair to a walking frame, and you are hoping for more improvement.

24You are affected more severely by cancer of the throat and tongue, for which you have received chemo and radiation therapy and which you say was an awful experience and you did not want to go through it again.  Unfortunately, the cancers have recurred with the possibility of further cancer sites being diagnosed.  I read letters from your doctors to this effect.

25Although you wish to return to the Northern Territory you may have to stay in Victoria for some months for medical attention.  You also suffer from mental health problems including a diagnosed personality disorder, which appears to have its origins in your traumatic and difficult childhood.  That history is another factor posited by Mr Pyne as contributing to the mitigating circumstances.

26Your background has been set out by the psychologist, Ms Gina Cidoni, in her report dated 18 July 2019.  You are aged 62 according to the materials.

27You are one of three children including a younger brother who died aged 18 months.  You were four years old when unknowingly in a shed you gave him a drink which turned out to contain poison.  Your father subjected you to quite severe physical and verbal abuse as you grew up.  You had not known what had happened to your brother until you were 18, when your father told you. This triggered heavy abuse of alcohol leading to other drug use and unsavoury associates.

28Despite this, your first criminal conviction was not until you were almost 30 and your subsequent court appearances prior to the rape offence related mostly to minor drug offences, all many years ago. 

29In November 2015 you were convicted in the Northern Territory of trafficking marijuana and handling stolen goods.  It was during that sentence that you were extradited to Victoria.

30You have been married four times and have five children, but you are not in contact with any of them.  Currently you have a partner who lives in Darwin. 

31You finished Year 11 at school and had no behaviour problems during your schooling.  You served in the army and later became a fisherman and for some years you were a nurse.

32Your plea of guilty is a factor to be taken into account as it deserves a discount on your sentence.  A trial has been avoided and that is of great utilitarian benefit to the court and the criminal justice system, particularly at a time when the pandemic continues to place great stress on the system.

33Finally, I have been told that the possibility of a wholly suspended sentence was discussed with both the complainant and the informant, and each has expressed no opposition to that disposition.  Indeed, they have indicated that they are comfortable with it.  The complainant in particular wishes to move on in her life.  That is an unusual response and I take it into account.

34Despite her attitude towards your punishment, the complainant's victim impact statement dated 19 October 2022 is an expression of her suffering as a result of your offending.  She suffered emotional trauma and ongoing angst with depression and Post-Traumatic Stress Disorder, for which she has had therapy.

35She has had to take time off work to make statements, attend court and to attend counselling over many years.

36The force of these combined mitigating factors must result in a sentence reflecting considerable leniency.  Although the crime of rape usually calls for a harsh sentence by way of punishment, as well as for purposes of general deterrence, the particular circumstances of the case are always relevant to the disposition.  At the same time, it must be emphasised that in offending against the complainant as you did, you took no heed of her right not to be violated and you ignored her express wishes, putting your desires first.

37That said, the case is very unusual for all the reasons I have already set out and particularly taking into account your parlous health.  At the time of the offence a suspended sentence was available as a disposition, and it is appropriate to impose it in this case.

38I sentence you to three years' imprisonment which will be wholly suspended for three years.  If you were to offend again in any way which attracts a sentence of imprisonment during the next three years, you will have breached the suspended sentence and you would have to return to court to be re-sentenced.  Do you understand that, Mr Clough?

39I could see Mr Clough saying yes, so he is muted at the moment, but I take it that he does understand that.

40OFFENDER:  Yes, Your Honour.  Can you hear me now?

41HER HONOUR:  Yes, I can hear you now, thank you.  Now I just want to ask something of Mr Perry.  Does the Sex Offender Registration legislation apply?

42MR PERRY:  No, Your Honour.

43HER HONOUR:  No.

44MR PERRY:  Given the age of the offending, no, Your Honour.

45HER HONOUR:  All right, thank you.  Are there any other matters which I have neglected or omitted, Mr Perry?

46MR PERRY:  I am not instructed to seek any ancillary orders of any sort, Your Honour.

47HER HONOUR:  Thank you.  Mr Pyne, anything further?

48MR PYNE:  No, Your Honour.

49HER HONOUR:  All right.  Well Mr Clough, I hope that the news about your health is not all bad and that you can respond to some treatment and return to the Northern Territory when you wish to.

50ACCUSED:  Excuse me, Your Honour, can I say something?  I don't mean to be – can I have ‑ ‑ ‑

51HER HONOUR:  Just one moment.  Mr Pyne, do you object to Mr Clough saying something now?

52MR PYNE:  Perhaps I will ‑ ‑ ‑

53HER HONOUR:  I am quite content to leave the Bench and let him speak to you first.

54MR PYNE:  Yes, I would like that, Your Honour.

55HER HONOUR:  All right.  Mr Clough, I am just going to leave the Bench.  You can talk to Mr Pyne.  If Mr Pyne would like me to come back into court, I will do that in a few moments.

56MR PYNE:  Thank you, Your Honour.

57ACCUSED:  Thank you, Your Honour.

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